Judgment:
ORDER
Whereas CESC Limited, having its Registered Office at CESC House, Chowringhee Square, Kolkata-700001 (hereinafter referred to as 'CESC'), is a Public Limited Company registered under the Companies Act, 1956 and a licensee engaged in the business of distribution and generation of electricity, under the Electricity Act, 2003;
And, whereas CESC is required to establish distribution system and to undertake supply of electricity through its distribution system : And, whereas placing and maintaining of electric lines or electrical plant under, over, along or across, posts in or upon any immovable property for the supply of electricity or for the purpose of telephonic or telegraphic communications necessary for proper co-ordination of works, the vesting and excise of the powers of the Telegraph Authority under Part-III of the Indian Telegraph Act, 1885 (8 of 1885) with respect to the placing of the telegraph lines and posts established or maintained or to be so established or maintained are required to be conferred on the CESC.
Now, therefore, in exercise of the powers conferred by Section 164 of the Electricity Act, 2003 the CESC is hereby authorized to exercise all the powers vested in the Telegraph Authority under Part-III of the Indian Telegraph Act, 1885, in respect of the electrical lines and electrical plant established or maintained, or to be so established or maintained for the supply of electricity or for the purpose of telephonic or telegraphic communication necessary for the proper coordination of the works within the licensed area of the CESC. The above authorization is subject to compliance by the CESC to the requirements of the provisions of the Electricity Act, 2003 and the rules made there under.
J) In terms of Section 68 of the 2003 Act, the State Government, through its Power Department, vide letter dated October 30, 2006 granted approval for installation of the proposed transmission line for evacuation of power from the 3rd Unit at Budge Budge Generating Station under Section 68 of the 2003 Act, subject to fulfilment of the following conditions:
i. Erection work will be undertaken by CESC Ltd. as per the relevant Acts and Rules in force governing such Transmission line.
ii. Adequate opportunity shall have to be provided by CESC Ltd. for representation by the people likely to be affected by such work through Notification as per Statute.
iii. Compensation as admissible shall have to be paid by CESC Ltd. to the affected people.
This approval is also subject to CESC securing appropriate approval of (Deptt. Of Environment, Government of West Bengal with requisite clearances from) East Kolkata Wetlands Management Authority, whenever necessary.'
K) In pursuance of the said requirements/conditions, on November 28, 2006, CESC caused a Notification (hereafter the said notification) to be published in various dailies, viz. 'The Telegraph', 'Ananda Bazar Patrika' and 'Ganashakti', notifying for information of all concerned its proposal to install the proposed transmission line. It was further notified that in order to provide adequate opportunity for representation by people likely to be affected by such work, representations, if any, may be made in writing within thirty days from date of the said publication to the Manager (Transmission Project), CESC Limited, and that representations made after that period would not be considered. Thus all persons likely to be affected by the proposed installation were put on notice and invited to lodge objections. This resulted in compliance with the conditions imposed in the approval letter dated October 30, 2006 issued by the State Government.
L) The District Magistrate concerned by his letter dated March 13, 2008, had furnished to the Executive Director (Technical), CESC, a copy of memo dated March 13, 2008. By the said Memo, which was addressed to the Pradhan of an unspecified gram panchayat, it was sought to be conveyed having regard to installation of the proposed transmission line that the people likely to be affected would be at liberty to make representation and that they would be entitled to be compensated for financial loss suffered by them. It was observed therein that the people at large should be advised to be aware of such programme and to inform them that they would have the opportunity to claim compensation.
M) As on July 7, 2009, it is the claim of CESC that 280 transmission towers have been erected out of a total route length of 85 Kms. from Budge Budge to Kasba and stringing of wires/conductors from one tower to the other has been done over 50 Kms. of land. The work is in full swing and according to it, erection of the rest of the towers as per the scheme and stringing of wires is emergently required to transmit benefits of functioning of the 3rd Unit of Budge Budge Generating Station to the people at large.
4. It has also been brought on record by CESC that a civil suit is pending before the competent civil court at the instance of one Dinmay Rawat claiming right, title and interest in respect of the properties alleged to have been purchased by the petitioner. A point has been taken by CESC that the petitioner has suppressed pendency of such suit as well as proceedings initiated by CESC under Section 144 of the Code and, therefore, not entitled to discretionary relief.
5. The petitioner is a private limited company registered under the Companies Act, 1956 and is engaged in construction business. It has undertaken a housing project for construction of flats/units for sale to people in the lower income category on plot Nos. 2275 to 2350 under L.R. Khatian No. 2596 at Mouza Nandabhanga within Bishnupur Police Station in the district of South 24 Parganas (hereafter the housing project). For executing it, the petitioner has been on a purchase spree of lands. Among others, it has purchased plot No. 2278 by a registered deed of sale dated November 13, 2006.
6. Of all the 320 towers proposed to be erected by CESC, the present dispute relates to a tower proposed to be constructed on plot No. 2278 and drawing of lines over the other plots. The petitioner, admittedly, did not raise any objection in response to the said notification because it 'did not become the owner of most of the lands through which overhead transmission line was to be drawn as well as the lands on which transmission tower is proposed to be installed on the date of notification' (paragraph 12 of the petition).
7. It is not in dispute that in March, 2009, both the petitioner as well as CESC had initiated proceedings under Section 144 of the Criminal Procedure Code (hereafter the Code) before the selfsame Executive Magistrate against each other seeking prohibitory orders, who has passed apparently conflicting orders.
8. However, the cause of action for moving the writ petition appears to be that the request of the petitioner for re-locating the tower proposed to be erected on plot No. 2278 to another side thereof was not accepted by CESC and it had assembled men and machinery to lay the foundation of the proposed tower. Accordingly, the petitioner has prayed for cancellation and/or withdrawal of any decision to install transmission tower on plot No. 2278 and to draw overhead transmission lines over plot Nos. 2278, 2321, 2322, 2323, 2275, 2279, 2280 and 2282.
9. The writ petition was heard finally in April, 2009 without exchange of affidavits and judgment was reserved. However, the order reserving judgment was re-called since I desired that the parties ought to consider several decisions of the Madras High Court, which I had the occasion to peruse courtesy Hon'ble Sridevan and Hon'ble Reghupati, JJ. of the said Court. The writ petition was consequently placed on board afresh. Upon consideration of those decisions, Mr. Jayanta Kumar Mitra, learned senior counsel representing CESC sought opportunity to file counter affidavit. The prayer was granted and the writ petition was heard extensively on exchange of affidavits, since a question of law of substantial importance is involved.
10. On this occasion, Mr. Mitra was called upon to address Court first.
11. Mr. Mitra contended that the petitioner has no right to maintain the writ petition. Prior to issuance of the said notification, the petitioner had become the owner of plot No. 2278 and some other plots over which lines are proposed to be drawn. The stand taken by the petitioner in paragraph 12 of the petition is entirely misconceived. Nothing prevented him from raising objection within the time frame mentioned in the said notification. Permission having been given under Section 68 of the 2003 Act on certain conditions, those conditions had to be complied with by CESC and power that is exercised in terms thereof is statutory power. The State Government had exercised powers in terms of Section 164 of the 2003 Act bonafide and in good faith. Conditions that were imposed were complied with. If all the conditions imposed by the Government under Section 164 of the 2003 Act read with Section 68 thereof are complied with, resistance/obstruction that is offered/created is of no worth in view of Sections 173 and 174 of the 2003 Act. Having regard to Section 174, the restrictions imposed by the Government under the 2003 Act would prevail if there is inconsistency between the conditions imposed there under and the requirements of the 1885 Act.
12. It his further contention that the State Government with a view to obviate the necessity of a subsequent adjudication in respect of a project of the magnitude of the present nature had insisted upon compliance with natural justice prior to commencement of any work. Once the conditions imposed under Section 68(3) of the 2003 Act were fulfilled, that amounted to valid exercise of power. If it is to be conceded that a property owner would have another opportunity to resist/obstruct once the work had started and the right of resistance/obstruction after exercise of power is to be recognized, a project of this magnitude can easily be frustrated by raising objections at regular intervals by plot owners as and when CESC would initiate steps to erect towers on different earmarked plots. He submitted that a property owner, if he is likely to be affected by erection of towers on a plot of land, must object at the right time and provisions contained in the 1885 Act cannot be availed of for stalling a project conceived in the interest of the public.
13. According to him, the State Government had approved the plan for erection of 320 towers over a distance of 80 kms. and, therefore, it was not a case of installation of a stray transmission tower on the petitioner's property. It is a huge work which could not be performed overnight. It is, therefore, unbelievable that the petitioner was unaware of installation of the proposed transmission line. The petitioner by not raising any objection at the proper time is guilty of acquiescence and, therefore, is precluded in law from contending that he has a right under Section 16(1) of the 1885 Act to resist/obstruct.
14. Having regard to the documents which had been annexed to the petition, he submitted that it ought to be assumed that the petitioner was aware of all the facts relating to erection of the proposed transmission line and, therefore, having waived his right by not raising any objection, he cannot claim any right by referring to Section 16(1) of the 1885 Act. It is also his submission that till date the petitioner's housing project does not have the sanction of the competent authority. Since construction of buildings by it is yet to commence, the petitioner's stand that it would be prejudiced if tower is erected on plot No. 2278 and lines are drawn over the other plots apart from being unjustified is not supported by any tangible material.
15. Next, he argued that providing natural justice to a property owner that is contemplated in terms of provisions contained in Section 16(1) or Section 17 of the 1885 Act has been provided to the petitioner even before commencement of the work in compliance with the said authorization and the order of approval issued by the State Government on October 30, 2006 in pursuance whereof the said notification was issued. If right to resist/obstruct in terms of Section 16(1) of the 1885 Act is to be recognized, resistance/obstruction would be a never ending process. It may so happen that between the date of publishing the said notification and date of exercise of powers under Section 10 of the 1885 Act, transfer of property by sale may be effected and the transferee would then claim a right either to resist/obstruct the work when trespass is committed and/or even after completion of the project, relocation or removal could be asked for. This, according to him, cannot be the intent of the statutory provisions particularly when a project of immense public importance is involved.
16. In support of his contention that prior consent of the property owner is not required to be obtained when the licensee intends to lay lines or place towers over/on private property, Mr. Mitra relied on the following decisions:
(i) : AIR 1960 Cal 311 Sri Provash Chandra Sett and Ors. v. Gouripore Electric Supply Co. Ltd. and Ors.;
(ii) : AIR 1980 Delhi 157 The Scindia Potteries Private Ltd. and Anr. v. Purolator India Ltd. and Ors.;
(iii) AIR 1987 Kar 282 Erammanavara Aswathappa v. Karnataka Electricity Board and Ors.,
(iv) AIR 1997 Mad 64 E. Venkatesan and Ors. v. Chairman, Tamil Nadu Electricity Board, Madras and Ors.;
(v) AIR 1999 Mad 365 Superintending Engineer and Ors. v. Thangaprakasam;
(vi) 2008 (3) CLT 50 B. Balamani and Anr. v. The District Magistrate and District Collector;
(vii) : 2008 (2) Madras Law Journal 703 T.S.T. Kaznavi v. Tamil Nadu Electricity Board and Ors.;
(viii) 2000 -1- L.W. 421 Dharmasivam and Anr. v. Tamil Nadu Electricity Board and Ors.;
(ix) : AIR 2008 Jhar 34 (jhr) Ajay Munjal Memorial Trust and Ors. v. Power Grid Corporation of India Ltd. and Ors.; and
(x) 2009 (1) CHN 685 Gimageria Welfare Primary Teachers Training Institute and Anr. v. The Chairman, West Bengal State Electricity Distribution Co. Ltd. and Ors.
17. Alternatively, he argued that even if Section 16(1) of the 1885 Act is held to be applicable, on facts of the present case it is clear that the District Magistrate concerned had conveyed 'no objection' and, therefore, the necessity to approach him once again for obtaining permission would not be necessary.
18. Referring to the order passed by the Executive Magistrate on CESC's application under Section 144 of the Code directing the local police to ensure that no disturbance occurs while it proceeds to lay down electric lines and erect towers in connection with the proposed transmission line, he urged that the same constituted compliance with Section 68(5) of the 2003 Act and thus CESC may not be accused of proceeding in violation of statutory provisions.
19. Based on the aforesaid submissions, he prayed for dismissal of the writ petition.
20. Mr. Kishore Dutta, learned Counsel appearing for the petitioner contended that the said notification published in the daily newspapers inviting objections from people likely to be affected is not a requirement of the statute and is, therefore, not a part of the process in terms whereof CESC intends to lay down the proposed transmission line. Sections 10 and 16 of the 1885 Act, according to him, do not speak of any notification. The said notification is thus inconsequential and as a corollary, non-raising of any objection by the petitioner in response to such notification is absolutely immaterial.
21. Next, he contended that in course of exercise of power under Section 164 of the 2003 Act vis--vis compliance of provisions contained in Part III of the 1885 Act by the licensee, the petitioner has a right under Section 16(1) of the 1885 Act to resist the process of installation of the proposed transmission line and once such resistance is offered, it is no longer open to CESC to proceed further with the work without obtaining permission of the District Magistrate and if CESC proceeds to erect tower on plot No. 2278 without such permission, the same would be an illegal act.
22. It has further been contended by him that the scope of Section 68 of the 2003 Act is limited. Approval of the appropriate Government referred to therein would apply only to installation of overhead lines but would not extend to installation of transmission lines. Overhead line, according to him, cannot include within its scope transmission line and that transmission line is different from other lines. Section 2(22) of the Act which defines electric plant would include setting up of poles/towers for transmission of electricity. That is not provided for by Section 68 of the 2003 Act. For installation of transmission line, the statutory provisions that are applicable are the provisions of the 1885 Act. Bereft of Section 164 of the 2003 Act, no work under Section 68 thereof can be carried on for erection of tower on the petitioner's property. If a right to resist is recognized by statute, it is the obligation of the licensee to approach the District Magistrate who may or may not permit exercise of powers conferred by Section 10 of the 1885 Act.
23. Next, he argued that approaching a Magistrate under Section 144 of the Code of Criminal Procedure is not akin to approaching a Magistrate under Section 68 of the 2003 Act. Performance of functions by Magistrates under Section 68 of the 2003 Act, Section 16 of the 1885 Act and Section 144 of the Code are different and that submissions made by Mr. Mitra in this regard are not worthy of acceptance.
24. He further contended that special terms imposed by the State Government does not mean that the right envisaged by Section 16(1) of the 1885 Act is done away with and the same do not also contemplate non-compliance of Sections 10 and 16 thereof. The provisions of the 1885 Act cannot have truncated application; either it applies as a whole or not at all. In terms of Section 17 of the 1885 Act, a property owner even has the right to claim relocation of lines or poles and since the District Magistrate has even the power to direct removal of lines or posts to any other part of the property to a higher or lower level or to direct alteration of its form, it is too late in the day to contend that so far as erection of towers by CESC is concerned, the petitioner would have no right at all.
25. According to him, all the three provisions i.e. Sections 10, 16 and 17 of the 1885 Act would have application in a case of the present nature. The petitioner has a right to resist, which has been exercised and therefore CESC must comply with the statutory provision i.e. obtain the permission of the District Magistrate before it proceeds further to excavate land and/or dig holes for laying foundation of the tower proposed to be erected on plot No. 2278.
26. Referring to rules framed by the State Government in exercise of power conferred by the 2003 Act viz. the West Bengal Works of Licensee Rules, 2006 (hereafter the W.B. Rules, 2006), he contended that even in terms thereof a licensee is not entitled to encroach upon private property without consent of its owner and that the permission of the officers specified in Rule 3 must to be obtained prior to commencement of work.
27. All the statutory provisions read together, he argued, leaves no manner of doubt that CESC must be permitted by the District Magistrate to proceed once the petitioner has offered resistance and in the absence of such permission it has no right to trespass on its property.
28. Mr. Dutta placed heavy reliance on the decision of the Full Bench of the Kerala High Court in Bharat Plywood and Timber Products Private Ltd. v. Kerala State Electricity Board, Trivandrum and Ors. reported in : AIR 1972 Kerala 47. Relevant passages from the said decision on which he relied are quoted below:
23. It is clear from the wording of Section 16 and particularly from the expression 'the District Magistrate may, in his discretion', that an order will not be forthcoming automatically. A District Magistrate may in his discretion in a given case refuse or decline to pass an order that the telegraph authority shall be permitted to exercise the powers. The wording is significant. The District Magistrate does not grant permission to the authority. But he orders that the authority 'shall be permitted.' The discretion conferred by the section on the District Magistrate is certainly a judicial discretion, and, in cases where the District Magistrate refuses to pass an order that the telegraph authority shall be permitted to exercise the powers mentioned in Section 10, it is inconceivable that the telegraph authority may, notwithstanding such refusal, continue to exercise such powers. The wording of the section is thus itself indicative of the fact that in cases of resistance or obstruction the District Magistrate will have to decide whether the authority should be permitted or not to exercise the powers under Section 16 of the Telegraph Act. This necessarily means that the telegraph authority cannot override or ignore the resistance or obstruction and continue to exercise the powers under Section 10 notwithstanding such resistance or obstruction. It follows that when an owner or occupier resists or obstructs the exercise of the power under Section 10, the telegraph authority will have to approach the District Magistrate for an order under Sub-section (1) of Section 16 and can exercise the power under Section 10 only in cases where the District Magistrate deems it fit to pass an order that he shall be permitted to do so. The power conferred by Section 10 is thus a conditional power; conditional on an order being passed under Section 16(1) by the District Magistrate that the authority may be permitted in case of resistance or obstruction, to exercise the power. This is so not only in regard to a telegraph authority but to the public officer or any other person authorised under the Electricity Act.
****
We have, therefore, necessarily to understand the statute as enabling an owner or occupier or a person having control over the property over which a line is sought to be placed as having the right to resist or obstruct. When the telegraph authority is so resisted or obstructed, the District Magistrate can be approached. If he is approached, the District Magistrate would decide whether the authority should be permitted to exercise the powers. When the District Magistrate decides that he should be so permitted resistance thereafter is made an offence. And there is an obligation cast upon the owner or occupier to render all facilities for the exercise of that power. The sections (sub-sections (1) and (2) of S. 16) can only be understood in this manner. In short Sections 10 and 16 have to be read together, and when there is resistance or obstruction, the power under Section 10 can be exercised only when the District Magistrate passes an order under Section 16(1) that he shall be permitted to exercise them.'
25. ****
As matters stand, we have to come to the conclusion that when a public officer, licensee or other person on whom the powers under the Telegraph Act have been conferred by the State Government acting under Section 51 of the Electricity Act is resisted or obstructed, that authority has no alternative but to approach the District Magistrate under Section 16(1) of the Telegraph Act for an order enabling him to exercise those powers'.
****
29. He also relied on the decision in T. Narayanan and Ors. v. Power Grid Corpn. (India) Ltd. and Ors. reported in (2007) 7 MLJ 452, wherein the learned Judge in paragraphs 20 and 24 held as follows:
20. It is no doubt true that all the judgments referred to by either side and discussed above arose out of the old Electricity Act. After the enactment of the Indian Electricity Act, 2003, the earlier provisions relating to Schemes etc. no longer hold the field. But however, the Indian Telegraph Act remains unchanged and therefore, the provisions of the Indian Telegraph Act cannot be wished away. Moreover, as we have seen already, the authorization given under Section 164 of the Act conferring powers on the licensee may be an absolute authorization or it could be a qualified or a modified or a limited authorization. The authorization granted to the Corporation is subject to their complying with the provisions of the Electricity Act, 2003. Therefore, the Corporation cannot be heard to say that it can ignore the provisions of sub- rule (4) of Rule 3. Even if one were to accept that, the Corporation cannot deny that its powers are limited by Section 16 of the Indian Telegraph Act. Therefore, when there are objections to the laying of telegraph lines or the erection of transmission towers as the case may be, the Corporation is bound to get the permission of the District Magistrate.
24. Section 16(1) of the Indian Telegraph Act clearly speaks of the permission of the District Magistrate when there is a resistance or obstruction to the exercise of power under Section 10. The requirement of the permission from the District Magistrate is clearly stipulated under Section 16. This is no something that the Court introduces, which the legislature did not intend to. In fact, Sub-section (2) of Section 16 makes non-compliance of an order of the District Magistrate by any person a specific offence under Section 188 of the Indian Penal Code.
30. The other decisions on which he placed reliance are:
1. : AIR 1989 Delhi 51 Sh. Surat Singh v. Municipal Corporation of Delhi;
2. 1999 MLJ 235 S. Kannappan and Ors. v. The Commissioner Thiruvottiyur Municipality, Madras;
3. : 2007 (6) Madras Law Journal 798 Evangelical Church of India v. Tamil Nadu Electricity Board and Ors.; and
4. 2008 (4) MLJ 860 Executive Engineer, Wind Farm Project, Tamil Nadu Electricity Board v. S. Jegatheesan and Ors.
31. On consideration of the above, he prayed for granting relief as claimed by the petitioner.
32. Mr. Sumit Kumar Panja, learned Counsel, who usually represents the West Bengal State Electricity Distribution Company Ltd. was invited by me to argue since any pronouncement on acceptance of Mr. Dutta's contentions could adversely affect the company. He referred to the relevant statutory provisions including the definition of various terms given in the 2003 Act to contend that once people likely to be affected by laying of proposed transmission line is given the opportunity to object before commencement and no objection is raised or the objection as raised is dealt with appropriately, further objection after power under Section 10 of the 1885 Act is exercised is not envisaged. According to him, a pragmatic and practical construction of the statutory provisions would render the right claimed by the petitioner non-existent. Authority to exercise Section 10 powers, as conferred in the present case, is not subject to Sections 16 and 17 of the 1885 Act and, therefore, the District Magistrate has no power to direct relocation of towers erected for supporting an electric line.
33. I have heard Mr. Dutta and Mr. Mitra as well as Mr. Panja.
34. The facts narrated above do reveal issuance of an authorization by the State Government (in terms of Section 164 of the 2003 Act) conferring powers of the telegraph authority, which it possesses under the 1885 Act, on CESC. The State Government also appears to have issued separate written order approving installation of the proposed transmission line, in exercise of power conferred by Section 68 thereof, subject to conditions which are required to be fulfilled by CESC. It is also evident that due notice of installation of the proposed transmission line was given to the public at large by publishing notices in daily newspapers and objections were invited. It is noteworthy that the said notification published in the daily newspapers duly mentioned the Mouzas through which the proposed transmission line is to pass. From the petition, it is clear that the petitioner had become the owner of plot No. 2278 as well as some other plots over which lines are proposed to be drawn prior to publication of the said notification by CESC in the daily newspapers, yet, it chose not to object. It is only when a major part of the installation is complete that the petitioner has presented this petition. Question is, whether in such a situation, permission of the District Magistrate under Section 16(1) of the 1885 Act is necessary or not.
35. For the purpose of answering the question, one has to read and understand what the relevant statutory provisions provide. The same are extracted below:
Provisions of the 2003 Act
Section 2. Definition
40) 'line' means any wire, cable, tube, pipe, insulator, conductor or other similar thing (including its casing or coating) which is designed or adapted for use in carrying electricity and includes any line which surrounds or supports, or is surrounded or supported by or is installed in close proximity to, or is supported, carried or suspended in association with, any such line;
20) 'electric line' means any line which is used for carrying electricity for any purpose and includes-
(a) any support for any such line, that is to say, any structure, tower, pole or other thing in, on, by or from which any such line is, or may be, supported, carried or suspended; and
(b) any apparatus connected to any such line for the purpose of carrying electricity;
22) 'electrical plant' means any plant, equipment, apparatus or appliance or any part thereof used for, or connected with, the generation, transmission, distribution or supply of electricity but does not include-
(a) an electric line; or
(b) a meter used for ascertaining the quantity of electricity supplied to any premises; or
(c) an electrical equipment, apparatus or appliance under the control of a consumer;
48) 'overhead line' means an electric line which is placed above the ground and in the open air but does not include live rails of a traction system;
61) 'service-line' means any electric supply-line through which electricity is, or is intended to be, supplied-
(a) to a single consumer either from a distributing main or immediately from the Distribution Licensee's premises; or
(b) from a distributing main to a group of consumers on the same premises or on contiguous premises supplied from the same point of the distributing main;
72) 'transmission lines' means all high pressure cables and overhead lines (not being an essential part of the distribution system of a licensee) transmitting electricity from a generating station to another generating station or a sub-station, together with any step-up and step-down transformers, switch-gear and other works necessary to and used for the control of such cables or overhead lines, and such buildings or part thereof as may be required to accommodate such transformers, switch-gear and other works;
68. Overhead lines.-(1) An overhead line shall, with prior approval ofthe Appropriate Government, be installed or kept installed above groundin accordance with the provisions of Sub-section (2).
(2) The provisions contained in Sub-section (1) shall not apply-
(a) in relation to an electric line which has a nominal voltage not exceeding 11 kilovolts and is used or intended to be used for supplying toa single consumer;
(b) in relation to so much of an electric line as is or will be within premises in the occupation or control of the person responsible for its installation; or
(c) in such other cases, as may be prescribed.
(3) The Appropriate Government shall, while granting approval under subsection (1), impose such conditions (including conditions as to the ownership and operation of the line) as appear to it to be necessary.
(4) The Appropriate Government may vary or revoke the approval at any time after the end of such period as may be stipulated in the approval granted by it.
(5) Where any tree standing or lying near an overhead line or where any structure or other object which has been placed or has fallen near an overhead line subsequent to the placing of such line, interrupts or interferes with, or is likely to interrupt or interfere with, the placing of such line, interrupts or interferes with, or is likely to interrupt or interfere with, the conveyance or transmission of electricity or the accessibility of any works, an Executive Magistrate or authority specified by the Appropriate Government may, on the application of the licensee, cause the tree, structure or object to be removed or otherwise dealt with as he or it thinks fit.
(6) When disposing of an application under Sub-section (5), an Executive Magistrate or authority specified under that Sub-section shall, in the case of any tree in existence before the placing of the overhead line, award to the person interested in the tree such compensation as he thinks reasonable, and such person may recover the same from the licensee.
Section 164. Exercise of powers of Telegraph Authority in certain cases.-The Appropriate Government may, by order in writing, for theplacing of electric lines or electrical plant for the transmission of electricityor for the purpose of telephonic or telegraphic communications necessaryfor the proper coordination of works, confer upon any public officer, licensee or any other person engaged in the business of supplying electricity under this Act, subject to such conditions and restrictions, if any, as the Appropriate Government may think fit to impose and to the provisions of the Indian Telegraph Act, 1885, any of the powers which the telegraph authority possesses under that Act with respect to the placing of telegraph lines and posts for the purposes of a telegraph established or maintained, by the Government or to be so established or maintained.
173. Inconsistency in laws.-Nothing contained in this Act or any rule or regulation made there under or any instrument having effect by virtueof this Act, rule or regulation shall have effect insofar as it is inconsistent with any other provisions of the Consumer Protection Act, 1986 or the Atomic Energy Act, 1962 or the Railways Act, 1989.
174. Act to have overriding effect.-Save as otherwise provided in Section 173, the provisions of this Act shall have effect not with standing anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.
175. Provisions of this Act to be in addition to and not in derogation of other laws.-The provisions of this Act are in addition to and not in derogation of any other law for the time being in force.
Provisions of the 1885 Act
'4. Exclusive privilege in respect of telegraphs, and power to grant licences.- (1)] Within [India], the Central Government shall have the exclusive privilege of establishing, maintaining and working telegraphs:
Provided that the Central Government may grant a license, on such conditions and in consideration of such payments as it thinks fit, to any person to establish, maintain, or work a telegraph within any part of [India]:
[Provided further that the Central Government may, by rules madeunder this Act and published in the Official Gazette, permit, subject tosuch restrictions and conditions as it thinks fit, the establishment, maintenance and working-
(a) of wireless telegraphs on ships within Indian territorial waters [and on aircrafts within or above [India], or Indian territorial waters], and
(b) of telegraphs other than wireless telegraphs within any part of [India] ].
[Explanation.- The payments made for the grant of a licence under this Sub-section shall include such sum attributable to the Universal Service Obligation as may be determined by the Central Government after considering the recommendation madein this behalf by the Telecom Regulatory Authority of India established under Sub-section (1) of Section 3 of the Telecom Regulatory Authority of India Act, 1997 (24 of 1997).]
(2) The Central Government may, by notification in the Official Gazette, delegate to the telegraph authority all or any of its powers under the first proviso to Sub-section (1).
The exercise by the telegraph authority of any power so delegated shall be subject to such restrictions and conditions as the Central Government may, by the notification, think fit to impose.'
10. Power for telegraph authority to place and maintain telegraph lines and posts.-The telegraph authority may, from time to time, place and maintain a telegraph line under, over, along or across, and posts in orupon, any immovable property:
Provided that-
(a) the telegraph authority shall not exercise the powers conferred by this section except for the purposes of a telegraph established or maintained by the 1 [Central Government], or to be so established or maintained;
(b) the Central Government] shall not acquire any right other than that of user only in the property under, over, along, across, in or upon which the telegraph authority places any telegraph line or post;
(c) except as hereinafter provided, the telegraph authority shall not exercise those powers in respect of any property vested in or under thecontrol or management of any local authority, without the permission of that authority; and
(d) in the exercise of the powers conferred by this section, the telegraph authority shall do as little damage as possible, and, when it has exercised those powers in respect of any property other than that referred to in clause(c); shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers.
11. Power to enter on property in order to repair or remove telegraph lines or posts.-The telegraph authority may, at any time, for the purpose of examining, repairing, altering or removing any telegraph line or post, enter on the property under, over, along, across, in or upon which the line or post has been placed.
14. Power to alter position of gas or water pipes or drains.-The telegraph authority may, for the purpose of exercising the powers conferred upon it by this Act in respect of any property vested in or under the controlor management of a local authority, alter the position there under of any pipe (not being a main) for the supply of gas or water, or of any drain (not being a main drain):
Provided that-
(a) when the telegraph authority desires to alter the position of any such pipe or drain it shall give reasonable notice of its intention to do so, specifying the time when it will begin to do so, to the local authority, and, when the pipe or drain is not under the control of the local authority, to theperson under whose control the pipe or drain is;
(b) a local authority or person receiving notice under Clause (a) may send a person to superintended the work, and the telegraph authority shallexecute the work to the reasonable satisfaction of the person so sent.
16. Exercise of powers conferred by Section 10, and disputes as to compensation, in case of property other than that of a local authority.-(1) If the exercise of the powers mentioned in Section 10 inrespect of property referred to in Clause (d) of that section is resisted or obstructed, the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise them.
(2) If, after the making of an order under Sub-section (1), any person resists the exercise of those powers, or, having control over the property, does not give all facilities for their being exercised, he shall be deemed to have committed an offence under Section 188 of the Indian Penal Code (45 of1860).
(3) If any dispute arises concerning the sufficiency of the compensation tobe paid under Section 10, Clause (d), it shall, on application for the purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him.
(4) If any dispute arises as to the persons entitled to receive compensation, or as to the proportions in which the persons interested are entitled to share in it, the telegraph authority may pay into the Court of the District Judge such amount as he deems sufficient or, whose all the disputing parties have in writing admitted the amount tendered to be sufficient or the amount has been determined under Sub-section (3), that amount; and the District Judge, after giving notice to the parties and hearing such of them as desire to be heard, shall determine the persons entitled to receive compensation or, as the case may be, the proportions in which the persons interested are entitled to share in it.
(5) Every determination of a dispute by a District Judge under Sub-section (3) or Sub-section (4) shall be final: Provided that nothing in this Sub-section shall affect the right of any person to recover by suit the whole or any part of any compensation paid by the telegraph authority, from the person who has received the same.
17. Removal or alteration of telegraph line or post on property otherthan that of a local authority.-(1) When, under the foregoing provisions of this Act, a telegraph line or posts has been placed by the telegraph authority under, over, along, across, in or upon any property, not being property vested in or under the control or management of a local authority, and any person entitled to do so desires to deal with that property in such a manner as to render it necessary or convenient that the telegraph line or post should be removed to another part or thereof or to a higher or lower level or altered in from, he may require the telegraph authority to remove or alter the line or post accordingly:
Provided that, if compensation has been paid under Section 10, clause(d), he shall, when making an requisition, tender to the telegraph authority the amount requisite to defray the expense of the removal or alteration, or half of the amount paid as compensation, whichever may be smaller sum.
(2) If the telegraph authority omits to comply with the requisition, the person making it may apply to the District Magistrate within whose jurisdiction the property is situate to order the removal or alteration.
(3) A District Magistrate receiving an application under Sub-section (2) may, in his discretion, reject the same or make an order, absolutely or subject to conditions, for the removal of the telegraph line or post to any other part of the property or to a higher or lower level or for the alteration of its form; and the order so made shall be final.
36. Part III of the 1885 Act is sub-divided into four sub-parts titled 'Power to Place Telegraph Lines and Posts', 'Provisions Applicable to Property Vested in or under the Control or Management of Local Authorities', 'Provisions Applicable to Other Property' and 'Provisions Applicable to All Property'. The specific powers conferred by Part III on a telegraph authority to place and maintain telegraph lines and posts are traceable in Sections 10, 11 and 14 of the 1885 Act noticed above. Since I am not concerned here with property of local authority, provisions contained in the second sub-part need not detain me. However, it is clear that apart from the aforesaid three sections, the other provisions of Part III, inter alia, comprehend certain obligations of a telegraph authority, which are distinct from powers exercisable by it under the 1885 Act, as well as measures to be undertaken if exercise of powers under Section 10 in respect of property referred to in Clause (d) thereof is resisted/obstructed, determination of compensation payable for damages sustained by a property owner by the District Judge, and the right exercisable by a private property owner to request removal or alteration of telegraph line or post even after receipt of compensation and disposal of such request by the District Magistrate.
37. Part VIII of the 2003 Act deals with 'Works', comprising three sections. It includes 'Works of Licensees' and 'Provisions Relating to Overhead Lines'. While Section 67 contains provisions conferring power on a licensee to lay down or place electric supply lines, Sections 68 and 69 deal with installation of overhead lines and the obligation of the licensee to give notice to the telegraph authority before it actually lays down or places electric line, electrical plant or other works respectively. Section 164 of the 2003 Act is contained in Part XVII titled 'Other Provisions'
38. On a conspectus of the relevant statutory provisions vis--vis the orders issued under the 2003 Act and considering the arguments advanced on behalf of the rival parties, I do not consider that on facts and in the circumstances of the present case permission of the District Magistrate under Section 16(1) of the 1885 Act is at all required.
39. I shall first deal with the contentions of Mr. Dutta that a transmission line is not an overhead line, that a tower to be erected for supporting a transmission line is 'electrical plant' and not 'electric line', and that CESC in consonance with the W.B. Rules, 2006 was bound to obtain the consent of the petitioner.
40. His contention that an overhead line would not include a 'transmission line' is absolutely untenable having regard to the definition of transmission line [Section 2(72)]. It is clear that a transmission line is, inter alia, an overhead line transmitting electricity from a generating station to another generating station or a sub-station.
41. In terms of Section 2(20) of the 2003 Act, a tower required for supporting any line [it could either be wire, cable, tube, pipe, etc. as mentioned in Section 2(40)] for carrying electricity would be comprehended within the meaning of 'electric line' and not 'electrical plant'. In fact, Section 2(22) thereof makes the position clear when it says that electrical plant would not include an electric line. I, therefore, unhesitatingly overrule Mr. Dutta's contention to the contrary.
42. Although the term 'electric supply line' is not defined in the 2003 Act, it is in fact a service line [as defined in Section 2(61)] through which electricity is, or is intended to be, supplied, inter alia, to a single consumer either from a distributing main or immediately from the distribution licensee's premises. In terms of Sub-section (2) of Section 67, the appropriate Government has been authorized to frame rules in relation to cases and circumstances in which the consent in writing, inter alia, of the owner or occupier of the land shall be required for carrying out works, the nature and period of notice to be given by the licensee before carrying out works, the procedure and manner of consideration of objections and suggestions received in accordance with such notice, the authority which may grant permission in the circumstances where the owner or occupier objects to carrying out of works and determination and payment of compensation to persons affected by works under Section 67. The State Government has framed the W.B. Rules, 2006 in terms of power conferred by Section 67. Rule 3(4) thereof, however, clearly mentions that nothing contained therein shall affect the powers conferred upon any licensee under Section 164 of the 2003 Act. The contention of Mr. Dutta that in terms of the said Rules the consent of the owner of the property i.e. the petitioner ought to have been obtained is unacceptable since the said Rules would have no application in respect of laying of overhead transmission lines for which the relevant provisions, to be borne in mind, are Sections 164, 68 and 69 of the 2003 Act.
43. Section 164 of the 2003 Act empowers the State Government to confer, by an order in writing, powers which the telegraph authority possesses under the 1885 Act with respect to placing of telegraph lines and posts, on any public officer, licensee or any other person engaged in the business of supplying electricity under that Act for placing of electrical plants and electric lines [read including any support for such line i.e. any structure, tower, pole, etc. as in Section 2(20)] for the transmission of electricity. However, such conferment of power may be (i) subject to such conditions and restrictions, if any, as the Government considering it fit imposes; and (ii) subject to the provisions of the 1885 Act.
44. In terms of Section 164 of the 2003 Act, the State Government could have conferred power on CESC to place electric lines subject to all the provisions contained under Part III of the 1885 Act; it, however, did not subject the authorization to any other provision contained under Part III of the 1885 Act in exercise of such power. Authorization in absolute terms was issued thus conferring specific powers exercisable by a telegraph authority without restriction/limitation envisaged in the other provisions contained under Part III thereof.
45. Section 10 of the 1885 Act grants legal sanction to a telegraph authority to commit trespass on private property subject only to the condition that while committing such trespass, it is under an obligation to cause as little damage as possible and shall pay full compensation to all persons interested for any damage sustained by them by reason of exercise of substantive powers conferred by Section 10. What Section 16(1) of the 1885 Act contemplates is the obligation of the telegraph authority to seek the permission of the District Magistrate if it faces resistance/obstruction. However, inhibition of suo motu action by the District Magistrate in a case of resistance/obstruction offered or created by a property owner cannot be inferred. Section 16(1) does not speak of a power, strict osensu, exercisable by the telegraph authority. CESC has been conferred similar powers which the telegraph authority specifically enjoys under the 1885 Act to place electric lines for the transmission of electricity. It does not necessarily follow that all the rights and liabilities of a licensee are governed by the provisions of the 1885 Act, unless of course a clear stipulation is contained in the order of conferment of power.
46. The said authorization cannot, therefore, be construed as one qualified by and/or subject to provisions contained either in Section 16 or Section 17 of the 1885 Act. On the contrary, while conferring on CESC the absolute power to commit trespass on private property, the said authorization says that it is subject to compliance by it of the requirements of the provisions of the 2003 Act and the rules made thereunder.
47. Conditions imposed by the State Government while approving installation of the proposed transmission line in terms of Section 68 of the 2003 Act have been noted above. The essence of one of the conditions is that principles of natural justice must be complied with.
48. Absence of provisions for pre-execution hearing in the 1885 Act is sufficiently made up by conferring power on the appropriate Government to impose restrictions and conditions as it may consider fit and proper. While issuing the said authorization, CESC was informed of its obligation to comply with the requirements of the provisions of the 2003 Act and the Rules made there under. The appropriate Government once again imposed conditions as appeared it to be necessary while granting approval under Section 68 of the 2003 Act. CESC complied with all the conditions and thereby discharged an obligation which was imposed on it not by the concerned statute but by the appropriate Government acting in terms thereof. Discharge of obligations by CESC in the manner directed by the State Government is discharge of obligations imposed by exercise of statutory power. The said notification published by it, therefore, was not an empty formality or inconsequential as contended by Mr. Dutta. Having regard to the magnitude of the project to be undertaken by CESC in public interest, it was considered necessary by the State Government that the objections of the public likely to be affected by erection of towers and placing of transmission lines on/over their property must be resolved prior to commencing any work in this respect. Compliance with natural justice principles thus could not have been deferred till CESC exercised the powers exercisable by a telegraph authority in terms of Section 10 of the 1885 Act.
49. Once opportunity to object is given prior to commencement of exercise of Section 10 powers by CESC, it cannot validly be contended that the property owner would again have the right to resist/obstruct after execution of the work is commenced by the licensee to install the proposed transmission line. If right to resist/obstruct after execution has commenced is to be recognized although no objection was raised, where for opportunity was duly given, that would clearly be contrary to the result desired to be achieved by conferment of such power. It is inconceivable on facts of the present case, as contended by Mr. Dutta, that the statute recognizes the scope of raising objections at three stages by the petitioner. If it is to be laid down as a proposition of law that a property owner would have one opportunity to object prior to commencement of execution, a second opportunity at the time power under Section 10 of the 1885 Act is exercised and the third one after execution is complete, that would render the statutory provisions granting absolute power to trespass (subject to causing minimum damage) nugatory. In such a case, it might so happen that availing of the first opportunity a property owner may succeed in having his request for relocation of a tower accepted and, thereafter, in purported exercise of right conferred by Section 16(1) may offer or create resistance/obstruction when the process to erect the tower is undertaken. If Mr. Dutta's argument is to be accepted, he may even after erection of the tower, seek relocation thereof by taking recourse to Section 17 of the 1885 Act. That, in my view, would lead to manifest absurdity and defeat the purpose of rendering essential service to the public at large which, as a licensee under the 2003 Act, CESC is bound to render.
50. It must be borne in mind that construction of a statute in a manner that offends the sense of justice must yield to a construction that is just, reasonable and sensible. Statute has to be read reasonably and not in such a manner that results in absurdity. In a clear case of construction producing absurd and impracticable results, it is open to the Court to adopt that construction that serves the ends of reasonableness and fairness, and promotes justice. Even when two constructions are equally open, the statute has to be harmoniously construed to ensure that one provision does not come in conflict with the other and Courts would be loath to choose the construction which introduces absurdity, uncertainty, friction or confusion in working of the system and prefer to adopt that alternative construction which is consistent with smooth working of the system and produces the desirable result.
51. The Court of Writ ought not to prevent, by an order of injunction, a licensee from performing an act recognized and permitted by the statutory provisions based on judicial interpretation of statutes in a manner that destroys the very essence of enacting laws honestly, fairly and equitably. Right of any private individual to hold property, in the circumstances where a licensee has limited right of user only, must yield to overwhelming public interest.
52. Even otherwise, I find sufficient merit in the submission of Mr. Mitra that in the eventuality of any inconsistency between the 2003 Act and the 1885 Act so far as grant of opportunity to a property owner to object is concerned, the 2003 Act would prevail having regard to provisions contained in Sections 173 - 175 of the 2003 Act. I am inclined to hold that right available to a property owner to resist/obstruct under Section 16(1) of the 1885 Act would be lost forever and thus not survive once he fails to avail the opportunity to object in response to the notification issued by the licensee inviting objection in respect of installation of the proposed transmission line.
53. The said notification having been issued by CESC in the newspapers inviting the general public to raise objection, if any, and the petitioner despite being aware thereof having not raised any objection, further action taken by CESC to erect tower on plot No. 2278 is unexceptionable and the petitioner has no right in law to resist or obstruct installation work.
54. The decisions of the Madras High Court in Venkatesan, Thangaprakasam and Dharmasivam, the Karnataka High Court in Erammanavara, the Jharkhand High Court in Ajay Munjal Memorial Trust, and this Court in Pravash Chandra Sett and Gimageria referred to supra, on consideration of various decisions and the relevant statutory provisions have held that no consent of a property owner is required to be obtained prior to exercising powers of the telegraph authority under Section 10 of the 1885 Act while a licensee, duly empowered, exercises power to place electric line and electrical plant in terms of Section 51 of the Indian Electricity Act, 1910 (hereafter the 1910 Act) and Section 164 of the 2003 Act.
55. True it is, as submitted by Mr. Dutta that while deciding those cases, the Courts did not have the occasion to consider Section 16(1) of the 1885 Act. It is, therefore, necessary to consider the scope and effect of the said provision in the contextual facts.
56. The scheme of the 1885 Act appears to be that while the telegraph authority exercises the power to place and maintain a telegraph line, under, over, along or across, and posts under or upon, any immovable property, it is under an obligation to do as little damage as possible and it shall be liable to pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers. It seems to be settled law that by necessary implication compliance with principles of natural justice while a telegraph authority exercises power conferred by Section 10 of the 1885 Act is excluded and consent of the landowner of the immovable property on which posts/poles are required to be erected is not a condition precedent. It may be so, in a given case, that the authority to commit trespass is non-existent. It is in such a situation, the legislature intended that once the telegraph authority is resisted or obstructed while it exercises powers conferred by Section 10 in respect of a property referred to in Clause (d) thereof that the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise them. As has rightly been held in Bharat Plywood (supra), the expression 'shall be permitted to exercise them' is